Nearly a year after Master Sergeant Jeffrey Sarver filed a federal lawsuit against the makers of the Academy Award-winning film The Hurt Locker, the filmmakers are fighting back. On February 1, 2011, the makers of Hurt Locker filed a motion to dismiss Sarver’s lawsuit. In his complaint, in addition to claims of defamation and invasion of privacy, Sarver alleges a violation of his right of publicity and the misappropriation of his name and likeness without his consent.

In 2005, after following Sarver (an Army bomb expert) and his army unit in Iraq, Mark Boal wrote an article, “The Man in the Bomb Suit,” revealing personal details about Sarver. Sarver maintains that the article inspired the screenplay for Hurt Locker and that screenwriter Boal unlawfully based the movie’s main character, William James (also an army bomb expert), on him.

Responding to these allegations, the filmmakers included a DVD of the movie along with their motion to dismiss for review by the California District Court. The Hurt Locker makers contend that watching the movie, which they maintain is a fictional work, will rebut Sarver’s claims of likeness. The makers also argue that the film does not violate Sarver’s right of publicity because neither his name nor his likeness are portrayed in the film and that any similarities between Sarver and the main character are also shared by most other bomb disposal experts in Iraq.

Lawyer Geoffrey Fieger disagrees with the filmmakers. Commenting on the striking similarities between Sarver and the character William James, Fieger noted that, “[t]he screenplay says he is a blonde, blue-eyed trailer trash from Tennessee, but he’s blonde, blue-eyed and grew up in a trailer in West Virginia . . . [n]obody can claim with a straight face that it’s not Jeff Sarver.”

In most states, it is unlawful to use someone else’s name, photograph or likeness without permission for a commercial purpose. The “right of publicity” is the individual right to control the commercial use of one’s own identity. According to California Civil Code § 3344, “[a]ny person who knowingly uses another’s . . . likeness, in any manner . . . or for purposes of advertising or selling . . . without such person’s prior consent . . . shall be liable for any damages sustained by the person . . . injured as a result thereof.”

Thus, if Sarver’s claims prove to be true, the makers of Hurt Locker will be liable to him for using his likeness for commercial purposes without his permission. And according to § 3344, that means filmmakers could be liable to Sarver for “any profits from the unauthorized use” — which translates to Sarver getting a share of the movie’s profits. Although this lawsuit may potentially reap substantial benefits for Sarver, he should also beware that “[t]he prevailing party in any action under [section 3344] shall also be entitled to attorney’s fees and costs.” Even though Sarver is alleging that Hurt Locker filmmakers injured him, there is a risk that he could end up being forced to pay them instead!

So Sarver beware: as we all know attorneys’ fees add up quickly and when you’re fighting Hollywood the bill can get pretty steep — but you don’t have to take my word for it, just ask Sheri Gilbert, the woman being ordered to pay nearly a million dollars in attorneys’ fees after suing Warner Brothers over the film Monster-in-Law.